STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
ORANGE COUNTY SCHOOL BOARD,
Petitioner,
vs.
LIUDMILA PARKER,
Respondent.
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) Case No. 12-0947TTS
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RECOMMENDED ORDER
Administrative Law Judge John D. C. Newton, II, of the Division of Administrative Hearings, heard this case, as noticed, on August 13, 2012, in Orlando, Florida.
APPEARANCES
For Petitioner: John C. Palmerini, Esquire
Orange County School Board
445 West Amelia Street Orlando, Florida 32801-1128
For Respondent: Joseph Egan, Jr., Esquire
Egan, Lev and Siwica, P.A. Post Office Box 2231 Orlando, Florida 32802-2231
STATEMENT OF THE ISSUES
Did Respondent, Liudmila Parker, commit misconduct in office, willful neglect of duty and gross insubordination in violation of section 1012.33(1)(a), Florida Statutes (2011),1/ as well as engage in conduct unbecoming a public employee?
Did Ms. Parker violate the Principles of Professional Conduct for the Education Profession and Orange County School Board Management Directive B-12?
What discipline, if any, should Petitioner, Orange County School Board (Board), impose on Ms. Parker?
PRELIMINARY STATEMENT
The Board employs Ms. Parker as a teacher. On March 6, 2012, the Board issued an Administrative Complaint seeking to terminate Ms. Parker's employment. Ms. Parker requested an administrative hearing to challenge her termination. The Board referred the matter to the Florida Division of Administrative Hearings to conduct the requested hearing. The undersigned noticed the matter for hearing to begin May 15, 2012.
On March 28, 2012, the Board moved to amend the Administrative Complaint. An Order of April 12, 2012, granted the motion. Ms. Parker sought reconsideration of that ruling. Ms. Parker's Motion for Reconsideration was denied May 8, 2012.
On May 1, 2012, the Board moved for leave to file a second amended complaint. That motion was denied on May 11, 2012.
During a pre-hearing conference conducted on May 7, 2012, the parties asked to continue the hearing. The request was granted, and the hearing was rescheduled to June 26, 2012.
On June 20, 2012, the parties filed a Joint Motion for Continuance. The motion was denied on June 21, 2012. On
June 25, 2012, the undersigned conducted an emergency telephone hearing at the parties' request. They sought a continuance of the final hearing due to the imminent landfall of Tropical Storm Debby. The final hearing was continued until August 13, 2012.
The final hearing was conducted as scheduled.
At the start of the final hearing, Ms. Parker renewed the motion for reconsideration of the Order allowing the amended complaint. The undersigned took the motion under advisement. After consideration of the argument of the parties at the hearing and in their Proposed Recommended Orders, the renewed motion for reconsideration is denied.
The Board offered the testimony of Leigh Ann Blackmore, Brandi Boone, Bridget Bresk, Alisa Dorsett, Suzanne Knight, Carianne Reggio, Rafael Sanchez, and Eugene Trochinski. Board Exhibits 1 through 11 and 13 through 17 were admitted into evidence.
Ms. Parker testified on her own behalf. The testimony of Ms. Parker's witness James Martrille was also accepted.
Ms. Parker's Exhibits 1 through 7 and 11 through 16 were admitted.
The parties moved to extend the time for filing proposed recommended orders. The motion was granted. The parties timely filed proposed recommended orders.
FINDINGS OF FACT
Stipulated Facts Admitted by Both Parties2/
The Board employed Ms. Parker as a classroom teacher.
Ms. Parker held a Professional Service Contract with the Board.
Ms. Parker received a written reprimand on May 3, 2010, for verbal intimidation of students and interfering in an investigation.
On November 19, 2010, Ms. Parker received a written reprimand for embarrassing students.
On November 29, 2010, Ms. Parker received a 5 day suspension without pay for confronting a student regarding a complaint the student and his parent made about Ms. Parker.
From February 9, 2011, through the end of the 2010-2011 school year, Ms. Parker was on relief of duty status without pay.
Background Facts
Ms. Parker taught ninth-grade English for Speakers of Other Languages (ESOL) at Dr. Phillips High School in Orange County, Florida, during the 2011-2012 school year. Ms. Parker has been teaching for 34 years. She started teaching in Lithuania where she taught for 27 years. In Lithuania she also taught ESOL. Ms. Parker majored in ESOL and has taught it all her life.
Assistant Principal of Instruction Dr. Suzanne Knight was Ms. Parker's direct supervisor.
When Ms. Parker began work at Dr. Phillips, she was given a copy of the Dr. Phillips High School Faculty and Staff Handbook. She also had access to an electronic copy of the handbook.
The handbook included a copy of the Principles of Professional Conduct of the Education Profession in Florida.
The handbook also included a copy of Orange County Management Directive B-12, Code of Civility.
Ms. Parker read and understood the handbook.
Ms. Parker read and understood the Principles of Professional Conduct of the Education Profession in Florida.
Ms. Parker read and understood the Code of Civility.
The handbook described and emphasized how to use common sense and professional judgment to avoid complications resulting from conduct that violates the Code of Ethics. The handbook included these admonitions:
"All co-workers and employees of the district are to be treated with dignity, respect and courtesy at all times."
"Use common sense and good judgment. Ask yourself how someone else could perceive your comments or actions. Ask yourself if your comments or actions could be taken out of context and/or misinterpreted."
"Avoid putting yourself in a position where you have to defend, explain or justify your behavior or actions."
December 8, 2011, Email
Dr. Phillips High School Principal Eugene Trochinski observed Ms. Parker's classroom teaching on November 17, 2011.
Dr. Knight observed Ms. Parker's classroom teaching on December 5, 2011.
Mr. Trochinski and Dr. Knight gave Ms. Parker written comments after observing her performance.
On December 8, 2011, in an email to Mr. Trochinski and Dr. Knight, sent at 3:52 a.m., Ms. Parker stated that she had "several questions to ask." The tone and the text of the email were confrontational and belligerent. Each of Ms. Parker's "questions" was in bold face font, something Ms. Parker does to demonstrate her indignation.
Some of Ms. Parker's supervisors' observations and her "questions" follow:
Observation--"Student in back of room working on Rosetta Stone but not engaged in daily lesson."
"Question" "Do you think they should work with the whole group without understanding anything?" Do you think it is better for them???"
Observation--"How do you celebrate success in the lesson" There was no evidence of this between teacher and students during my observation."
"Question": "Do you want me to interrupt the test and start celebrating success because you came in for observation???"
Observation--[Although the specific observation was not reproduced, it was plainly about the students not appearing to be engaged and the lesson being difficult to focus on.]
"Question(s)"--"My students demonstrated good behavior and they were listening attentively. Your comments 'Students did not appear to be engaged in the lesson' and 'It was hard to focus on the lesson due to not understanding the starting point' do not make sense at all. Hard to focus for who? For you??? May be.
Ms. Parker follows her "questions" with: "To sum up, I evaluate the above-mentioned comments of administrators as one more evidence of a biased attitude towards me at school; it is apparent nagging, nothing else."
The email ends with a demand to compare and contrast the teacher training at Dr. Phillips with teacher training at Hunter's Creek Middle School and Evans High School.
The last words of the email are: "Thank you for your time spent on reading this email. I am looking forward to getting your responses to my questions ASAP."
Ms. Parker's explanation for her charges of bias was only that she was a good teacher and, therefore, Dr. Knight must be picking on her.
Section 1012.34(3)(c) and Article X, Section (B)(2) of the Contract between the School Board of Orange County and the Orange County Classroom Teachers Association impose a duty on Dr. Knight and Mr. Trochinski to evaluate the performance of teachers under their supervision, including Ms. Parker. This observation and assessment is not "nagging" or "bias."
Ms. Parker's December 8, 2011, email about their observations was discourteous, disrespectful, uncooperative, and a display of temper. It interfered with her ability to perform her duties and the ability of Dr. Knight and Mr. Trochinski to effectively perform their duties. Ms. Parker's email also demonstrates a refusal to take responsibility for her own actions and statements.
Ms. Parker's testimony about a later conversation with Ms. Knight affirmed the hostility to criticism and suggestions for improvement recorded in her email. One example is her lengthy answer, at page 430, line 16 of the Transcript, to the question "How long would she [Dr. Knight] come in to your class?"
Ms. Parker's answer included this statement, with emphasis supplied:
So--and then when she said that it doesn't coincide, I asked, Okay, Dr. Knight, for example you were in my class on December 5th, and you saw--and she wrote down, she had in her notes--that we were going to read and work with fluency based on the story The Birds. And she said, yes. I said, Then why do you say that my lesson plans do not coincide with what I was teaching? She said, Hum, I came in at the beginning and then I don't know what you were teaching. I said, Do you think that I wrote this agenda for the president or somebody else? I wrote for the students. I cannot just write the words and do something else. I don't know. It seems to me there is common sense here. Yeah. So she was just arguing. And her statements, I don't know.
This statement was a display of temper, discourteous, disrespectful, and uncooperative. It also interfered with
Ms. Parker's ability to perform her duties and the ability of Dr. Knight to perform her duties.
Because of the December 8, 2011, email, Dr. Knight held a conference with Ms. Parker on December 9, 2011, about the email. Dr. Knight explained what was wrong with the email. She also advised Ms. Parker of the importance of being careful when writing emails because of the risks that a writer may not be as polite as they would be in a personal conversation and the risk that emails may be written and sent when emotions are running high.
Ms. Parker reiterated her claims that all criticisms were due to bias. Ms. Parker interrupted Dr. Knight and said "Let's have a dialogue not a monologue."
During the meeting of December 8, 2012, Ms. Parker did not acknowledge any validity to any of the concerns raised. She did, however, complain about training and lack of support.
During this meeting, Ms. Parker communicated in person as she had in the email. She again demonstrated an inability to accept criticism and responsibility for her own actions. She was again discourteous, disrespectful, and uncooperative and displayed her temper. Ms. Parker's behavior interfered with her ability to perform her duties and the ability of Dr. Knight to perform her duties.
Ms. Parker's approach was the same during her testimony. She testified that she had a right to tell an administrator to stop talking and let her speak. Ms. Parker impatiently described the December 8 meeting as useless.
In her words starting at page 556, line 17:
Yes, I can [tell an administrator that she should stop talking]. Because she was starting to say again and again, and I have no time to sit the whole planning period without any production, without any use, because my planning period I'd rather spend with students. By the way, at that meeting, I wanted to stand up and leave her office, because she didn't want to listen to me. She was only talking, talking, talking. For monologue, she could send me an e-mail. If
it was a dialogue--meeting is meant for dialogue, for exchanging ideas, for talking, to discussing [sic] things, but she was just talking and talking. That's why I said, Let us have dialogue, not monologue, because she was speaking 15 minutes.
Later in her testimony, Ms. Parker dismisses
Dr. Knight's efforts to explain what Ms. Parker had done wrong and suggest improvements this way: "She brought me there to discuss things. Instead of discussion, she began to say boring things, repeating."
Ms. Parker's testimony reflected the confrontational and belligerent approach manifested in her emails and conversations during her employment. She repeatedly expressed her view of her superiority as a teacher and her view that all criticisms were unfounded and unfair. She never acknowledged even a possibility that any of her actions or communications were improper.
"Elements of Literature" Communications
On January 5, 2012, Ms. Parker lunched with fellow teacher Brandi Boone and two other teachers. During lunch,
Ms. Parker said that she did not use the "Elements of Literature" curriculum book and had not used it since the beginning of the year, because it was "too difficult" for her students.
On January 11, 2012, Dr. Knight conducted an ESOL meeting to address aligning the ESOL curriculum with the general
English curriculum. Having both general and ESOL students use the "Elements of Literature" curriculum was part of the school's required teaching strategy. During the meeting, Ms. Parker told Dr. Knight that she used the "Elements of Literature" curriculum and that she loved it.
On January 12, 2012, Ms. Boone approached Dr. Knight and told Dr. Knight about Ms. Parker's statement during the January 5, 2012, lunch meeting that she was not using "Elements of Literature" because it was too difficult for her students.
On January 17, 2012, Dr. Knight called Ms. Parker in to her office. Assistant Principal Alisa Dorsett was present.
During the meeting Dr. Knight asked Ms. Parker if she used "Elements of Literature." She asked because of her observations of Ms. Parker's classroom teaching and Ms. Boone's statements. Ms. Parker said that she was.
Because of what she had observed and what Ms. Boone had reported, Dr. Knight questioned the accuracy of this. She told Ms. Parker she thought that Ms. Parker was "being less than honest." This was a fair observation based on the information known to Dr. Knight.
During the meeting, Ms. Parker repeatedly got up and tried to go behind Dr. Knight's desk to show her documents. Dr. Knight repeatedly had to ask Ms. Parker to sit down.
At the end of the meeting, Ms. Parker told Dr. Knight that "If you want to go to court, we can go to court."
Ms. Parker testified that she said: "Shall we go to court? We'll go to court."
Regardless of the exact wording, the gist of the comment is the same. The comment, like Ms. Parker's conduct in the meeting, was a combative, discourteous, threatening, and uncooperative response to Dr. Knight's attempt to address a professional issue. The comment and Ms. Parker's behavior in the meeting also interfered with Ms. Parker's ability to perform her duties and the ability of Dr. Knight to perform her duties.
It is not the fact that Ms. Parker wanted to exercise her legal rights that is improper. It is the way she expressed it that is improper.
Ms. Parker's repeated attempts to move behind
Dr. Knight's desk were also combative, discourteous, threatening, and uncooperative.
Emails of January 17 and 18
After the January 17 meeting, Ms. Parker wrote emails to Dr. Knight and Ms. Dorsett. In her January 17 email to
Ms. Dorsett, Ms. Parker asked Ms. Dorsett to write in her notes that Dr. Knight told Ms. Parker that she was a dishonest person and that Ms. Parker had lied during the ESOL meeting.
Ms. Dorsett replied that she would write that Ms. Parker had asked to have that statement included in her
notes. But Ms. Dorsett testified that she did not agree that the requested additions were accurate.
Ms. Parker sent another email to Dr. Knight on January 18, 2012, in which she said that Ms. Dorsett had not responded to the January 17 email. Ms. Parker then asked in the email, "So who is dishonest then?"
The statement is discourteous, disrespectful, a display of temper, and uncooperative. It also interfered with
Ms. Parker's ability to perform her duties and the ability of Dr. Knight and Ms. Dorsett to perform their duties.
Communications with Ms. Boone
On Sunday, January 22, 2012, at 12:49 a.m., Ms. Parker sent Ms. Boone an email. In it, Ms. Parker accused Ms. Boone of telling Dr. Knight that she grouped her students by ethnicities.
Ms. Parker, who suspected but had not confirmed that Ms. Boone told Dr. Knight that she said she did not use "Elements of Literature," went on to discuss her usage of "Elements of Literature."
The email concluded: "My colleagues who create slanders will be really upset when investigation starts. According to The Principles of Professional Conduct, 'the educator shall maintain honesty in all professional dealings.'
You have to be honest and tell the truth. You must take responsibility for your words and actions."
The statement was threatening. Ms. Parker intended to convey to Ms. Boone that she would sue her for slander. Exercising your legal rights, including in a work place context, is not inherently improper. But Ms. Parker's threat of investigations and slander suits reduced her ability to effectively perform her duties, reduced Ms. Boone's ability to effectively perform her duties, harassed Ms. Boone, created a hostile and intimidating environment, and was bullying.
Ms. Boone replied in an email of January 22, 2012, at 8:24 p.m. She denied accusing Ms. Parker of grouping students by ethnicity. She acknowledged providing information to Dr. Knight and that she was appalled when Ms. Parker told Dr. Knight she used and loved "Elements of Literature." In a second email a few minutes later, Ms. Boone said that she wanted Dr. Knight present for any further conversations between her and Ms. Parker about students or Ms. Parker's claims.
Ms. Parker responded with a lengthy email that included the following series of sarcastic and combative statements.
You showed yourself a very disrespectful person accusing me, a veteran teacher, who is
2 times older than you, who has worked 34 years at school.
I also noticed that you have hearing problems. Am I right?
Maybe you misunderstood something and jumped to conclusions?
Besides, I love humor. Boring people do not understand it as a rule.
And guess what? I have a lot of students' works done during the first semester based on "Elements of Literature", and I can show them to everybody at any time. I showed them to Dr. Knight.
Why should I tell [sic] that I did not work with EL???
You saw my students' projects too. In your class there are no students' works at all!
To sum up, you violated the Principles of Professional Conduct: Obligation to the Profession of Education (d) and (e) because you created offensive environment and made a malicious statement about your colleague (me).
Now you will have to take responsibility for your words.
After your actions I have no desire to communicate with you at all, but because of working conditions I will have to have "that pleasure", only in the presence of Rita or administrator.
Ms. Parker's statements in these email communications harassed Ms. Boone and created a hostile, intimidating, and oppressive environment. The statements were discourteous and interfered with the ability of Ms. Parker and Ms. Boone to perform their duties.
Midpoint Evaluation
Dr. Knight met with Ms. Parker on January 19, 2012, to discuss her midpoint evaluation. Assistant Principal Bridget Bresk attended as a witness. During the meeting, Dr. Knight gave Ms. Parker a direct and reasonable order to acknowledge that she had received the written mid-point evaluation. Ms. Parker had not acknowledged receipt as requested when she was provided the evaluation. The acknowledgement form only asked the teacher to acknowledge receiving the evaluation. It did not state or imply that the teacher agreed with the evaluation.
Ms. Parker refused. Ms. Parker said that she would not acknowledge receipt of the evaluation because she did not agree with it. Dr. Knight explained that the acknowledgement simply stated that Ms. Parker had received it and did not say that
Ms. Parker agreed with the evaluation.
Ms. Parker still refused. She told Dr. Knight that "acknowledge" means to agree and that Dr. Knight "should look it up yourself."
Ms. Parker intentionally refused to obey a reasonable direct order given by her direct supervisor, Dr. Knight.
Ms. Parker was also discourteous and uncooperative. Her conduct impaired Dr. Knight's ability to perform her duties.
During the meeting, when they discussed what Ms. Parker needed to improve, Ms. Parker told Dr. Knight "sorry for
breathing." She sought to justify the comment by saying it was an "American expression."
Ms. Parker also told Dr. Knight her comments after the classroom observation about celebrating student success were "ridiculous."
At the meeting's end, Ms. Parker told Dr. Knight one of the following: "I have people who will take care of me and I have people who will take care of you"; "There are people who will take care of me and take care of you."; or "There are people who will take care of me and you."
There are no material differences between the three statements. Any version is a threatening and bullying statement. Ms. Parker's argument that she was only stating the obvious, that she could file a grievance, is not persuasive. She made no reference to a grievance in the meeting. Her words plainly convey a darker impression than "we may have to agree to disagree and resolve our disagreements legally" or "I will file a grievance about this."
The preceding comments were threatening, bullying, discourteous, disrespectful, and uncooperative. Also, throughout the meeting, Ms. Parker's conduct impaired the ability of
Dr. Knight and Ms. Parker to perform their duties.
After the meeting, Ms. Parker sent Dr. Knight two emails. The first, sent at 5:20 p.m., included the following two sarcastic statements:
I appreciate your close attention to me lately. I wish you started to analyze planning problems since the beginning of the school year, but better late than never.
Well, I think you are very brave. I wonder if you are aware of the fact that Code of Civility refers to all OCPS employees, not only teachers.
The second, sent 30 minutes later, included the two statements that follow.
Referring to Dr. Knight's concerns about whether Ms. Parker was using the "Elements of Literature," Ms. Parker said: It proves again and again your hostile biased attitude.
Earlier or later, we all have to pay for what we have done. . . . (Unknown author).
Ms. Parker's original explanation that she was paraphrasing a biblical passage and her later explanation that she was quoting Oscar Wilde are neither persuasive nor material. The source of the quote does not alter the fact that the statement and the entire email are discourteous, disrespectful, bullying, and uncooperative.
Grievance Meeting
On January 20, 2012, Ms. Parker submitted a grievance to the Board's employee relations office. Carianne Reggio, the
Equal Employment Opportunity Officer and Equity Officer for the Orange County Schools, investigated the grievance.
Ms. Reggio met with Ms. Parker on March 20, 2012, to advise her of the result of the investigation.
During the meeting Ms. Parker displayed, as she had in her meetings with Dr. Knight, what the union representative described as confidence "that borders on what we might perceive as arrogance."
During the meeting, Ms. Parker gave no indication that she acknowledged that anything she had said or done during the communications and meetings from December 2011 forward was inappropriate or improper. She maintained that same position during her testimony.
During the three-hour meeting, Ms. Reggio reviewed her findings of no violations with Ms. Parker and considered
Ms. Parker's reactions and complaints. Ms. Parker was very upset.
While Ms. Reggio was walking Ms. Parker to the elevator, Ms. Parker said she could see why teachers resort to extreme measures and shoot up school systems. This was a reference to a recent murder/suicide in Jacksonville, Florida, where a teacher shot the headmistress of his school and then killed himself.
Ms. Parker did not accompany this statement with any gestures, a display of a weapon, or any more specific statement. The statement was crass, disquieting, and inappropriate. But it was not a threat.
On March 6, 2012, the Superintendent of Schools recommended termination of Ms. Parker's contract.
CONCLUSIONS OF LAW
Statement of Stipulated Issues of Law3/ 80. Pursuant to §1012.33(1)(a):
All such contracts, except continuing contracts as specified in subsection (4), shall contain provisions for dismissal during the term of the contract only for just cause. Just cause includes, but is not limited to, the following instances, as defined by rule of the State Board of Education: immorality, misconduct in office, incompetency, two consecutive annual performance evaluation ratings of unsatisfactory under s. 1012.34, two annual performance evaluation ratings of unsatisfactory within a 3-year period under
s. 1012.34, three consecutive annual performance evaluation ratings of needs improvement or a combination of needs improvement and unsatisfactory under s. 1012.34, gross insubordination, willful neglect of duty, or being convicted or found guilty of, or entering a plea of guilty to, regardless of adjudication of guilt, any crime involving moral turpitude.
Misconduct in office is defined by Florida Administrative Code Rule 6A-5.056(2) as follows:
A violation of the Code of Ethics of the Education Profession in Florida as adopted in Rule 6B-1.001, F.A.C.;
A violation of the Principles of Professional Conduct for the Education Profession in Florida as adopted in Rule 6B-1.006, F.A.C.;
A violation of the adopted school board rules;
Behavior that disrupts the student's learning environment; or
Behavior that reduces the teacher's ability or his or her colleagues' ability to effectively perform duties.
Gross insubordination means the intentional refusal to obey a direct order, reasonable in nature, and given by and with proper authority; misfeasance, or malfeasance as to involve failure in the performance of the required duties. F.A.C.
6A-5.056(4).
Willful neglect of duty means intentional or reckless failure to carry out required duties. F.A.C. Rule 6A-5.056(4).
The Principals of Professional Conduct for the Education Profession in Florida, Florida Administrative Code Rule 6B-1.006 requires as follows:
Obligation to the student requires that the individual:
"Shall make reasonable effort to protect the student from conditions harmful to learning and/or to the student's mental and/or physical health and/or safety." (Rule
6B1-1.006(3)(a))
"Shall not intentionally expose a student to unnecessary embarrassment or disparagement." (Rule 6B-1.006(3)(e))
"Obligation to the profession of education requires that the individual:
Shall not engage in harassment or discriminatory conduct which unreasonably interferes with an individual's performance of professional or work responsibilities or with the orderly processes of education or which creates a hostile, intimidating, abusive, offensive, or oppressive environment; and, further, shall make reasonable effort to assure that each individual is protected from such harassment or discrimination." (Rule 6B-1.006(5)(d))
Orange County Management Directive B-12 states as follows:
Code of Civility
The education of a child happens only through partnership and among partners must be the child, the school faculty and staff, the parent(s) or guardian(s), the community and district office employees. Partnership is an active state that includes sharing responsibilities, meaningful communication and welcomed participation. When people who are working together agree, the partnership runs smoothly. But no two people will always agree and that can make partnership difficult. The partnership is most
powerful--as children are educated to reach their potential--when we agree on how to disagree. We must be civil in our discourse.
Civility is often described by its absence. We hear of harmful actions such as road rage, physical confrontation, ethnic stereotypes and slurs. But civility is not just an absence of harm. It is the affirmation of what is best about each of us individually
and collectively. It is more than saying "please" and "thank you." It is reflecting our respect for others in our behavior, regardless of whether we know or like them. It also is not simply being politically correct and is not to be used to stifle criticism or comment. It is being truthful and kind and is each of us taking responsibility for our own actions rather than blaming others.
As we communicate with each other, we need to remember that we are working together to benefit the children of this community.
Therefore, the Orange County School Board requires that as we communicate; students, OCPS faculty and staff, parents, guardians and all other members of the community shall:
Treat each other with courtesy and respect at all times
This means that:
We listen carefully and respectfully as others express opinions that may be different from ours
We share our opinions and concerns without loud or offensive language, gestures or profanity
Treat each other with kindness This means that:
We treat each other as we would like to be treated
We do not threaten or cause physical or bodily harm to another
We do not threaten or cause damage to the property of another
We do not bully, belittle or tease another and we do not allow others to do so in our presence
We do not demean and are not abusive or obscene in any of our communications
Take responsibility for our own actions This means that:
We share information honestly
We refrain from displays of temper
We do not disrupt or attempt to interfere with the operation of a classroom or any other work or public area of a school or school facility
Cooperate with each other This means that:
We obey school rules for access and visitation
We respect the legitimate obligations and time constraints we each face
We notify each other when we have information that might help reach our common goal. This includes information about - safety issues - academic progress, changes that might impact a student's work, events in the community that might impact the school
We respond when asked for assistance
We understand that we do not always get our way
Authority and Enforcement of the Code of Civility Authority and enforcement of a code for civil conduct ultimately depends on the individual and collective will of those involved - students, OCPS faculty and staff, parents, guardians and all other members of the community. However, individuals need to know how to respond to uncivil behavior and how such behavior will be responded to.
Therefore:
A student who believes that he or she has not been treated in a manner reflective of the Code of Civility should report such behavior to the appropriate school administrator.
A parent, guardian or community member who believes that he or she has not been treated in a manner reflective of the Code of Civility should report such behavior to the staff member's immediate supervisor.
An employee who believes that he or she has not been treated in a manner reflective of the Code of Civility should use the following guidelines:
If personal harm is threatened, the employee may contact law enforcement.
Anyone on school district property without authorization may be directed to leave the premises by an administrator or security officer. Anyone who threatens or attempts to disrupt school or school district operations, physically harm someone, intentionally cause damage, uses loud or offensive language, gestures, profanity or shows a display of temper may be directed to leave the premises by an administrator or security officer. If
such person does not immediately and willingly leave, law enforcement shall be called.
If a telephone call recorded by an answering machine, email, voice mail message or any type of written communication is demeaning, abusive, threatening or obscene the employee is not obligated to respond.
If personal harm is threatened, the employee may contact law enforcement. The employee shall save the message and
contact his or her immediate supervisor
or school district security.
If any member of the public uses obscenities or speaks in a demeaning, loud or insulting manner, the employee to whom the remarks are directed shall take the following actions:
Calmly and politely ask the speaker to communicate civilly.
If the verbal abuse continues, give appropriate notice to the speaker and terminate the meeting, conference or telephone conversation.
If the meeting or conference is on school district premises, request that an administrator or authorized person direct the speaker promptly to leave the premises.
If the speaker does not immediately leave the premises, an administrator or other authorized person shall notify law enforcement to take any action deemed necessary.
Conduct unbecoming a public employee is that conduct "which falls below a reasonable standard of conduct prescribed by
the employer." See Orange County School Board v. Michael O'Beill, 2006 WL 1674280, Case No. 05-4551 (Fla. DOAH June 16,
2006)(Recommended Order), citing Seminole County Board of County Commissioners v. Long, 422 So. 2d 938 (Fla. 5th DCA 1982).
Jurisdiction, Burden, and Authority
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this case pursuant to sections 120.569, 120.57(1), and 1012.40(2)(c), Florida Statutes.
The superintendent of the school district has the authority to make recommendations for dismissal regarding school employees pursuant to section 1012.27(5).
The Board has the authority to dismiss employees pursuant to sections 1001.42(5) and 1012.22(1)(f), Florida Statutes.
District school boards have authority to "adopt rules governing personnel matters." § 1012.23(1).
Article XII(A)(1) of the Contract Between the School Board of Orange County, Florida, and the Orange County Classroom Teachers Association (2010-2011) provides for discipline of teachers such as Ms. Parker. It states: "An employee may be disciplined only for just cause, and discipline shall be imposed only for a violation of an expressed rule, an expressed order, an
expressed policy or a reasonable expectation of management which reasonably should have been known to the employee."
The Board must prove that it has just cause to terminate Ms. Parker's employment. Dileo v. Sch. Bd. Dade Cnty.
569 So. 2d 883 (Fla. 3d DCA 1990). It must prove just cause by a preponderance of the evidence. See McNeill v. Pinellas Cnty.
Sch. Bd., 678 So. 2d 476, 477 (Fla. 2nd DCA 1996); Sublett v.
Sumter Cnty. Sch. Bd., 664 So. 2d 1178, 1179 (Fla. 5th DCA 1995).
A pattern of verbal attacks on colleagues, as well as hostile and aggressive conduct towards a teacher's supervisors, demonstrate just cause to discharge a teacher for misconduct in office and gross insubordination. The behavior violates Florida Administrative Code Rule 6B-1.006(5)(d). Gilchrist Cnty. Sch.
Bd. v. Taylor, Case No. 01-4891 (Fla. DOAH June 26, 2002; Gilchrist Cnty. Sch. Bd. July 30, 2002).
A teacher's repeated disrespectful conduct is sufficient to demonstrate "a complete roadblock" to the teacher's ability to be effective in the school system. Sarasota Cnty. Sch. Bd. v. Ehlers, Case No. 10-4142 (Fla. DOAH Nov. 10, 2010; Sch. Bd. Sarasota Cnty. Dec. 7, 2010)
A persistent, sustained, and unreasonable course of defiance over time, with a disaffected attitude toward authority, justifies termination of a teacher for gross insubordination.
Id.
In Ehlers, the employee's formal disciplinary history was a verbal reprimand issued eight years before the termination recommendation. This contrasts with Ms. Parker who was reprimanded twice and suspended once in the two years before her termination for repeated discourteous, disrespectful, uncooperative, and combative conduct towards her supervisors and a colleague.
Progressive discipline is not required when there are threats of violence and repeated harassment of co-workers. Id.
See also Sarasota Cnty. Sch. Bd. v. Berry, Case No. 09-3557 (Fla. DOAH Jan. 27, 2010; Sch. Bd. Sarasota Cnty. March 2, 2010).
Charges of the Administrative Complaint
Section 1012.40(2)(c) requires a superintendent and a school board to provide an employee written notice of the reasons for termination. The charges of the Amended Administrative Complaint must, therefore, be considered to determine if the Board has proven just cause for termination. Cf. Klein v. Dep't of Bus. and Prof'l Reg., 595 So. 2d 966, 967 (Fla. 2nd DCA 1993).
Rule 6A-5.056 defines the criteria for suspension and dismissal of teachers for just cause. The Joint Pre-Hearing Stipulation quotes the rule's current definition of "gross insubordination" as an issue of law upon which there was agreement. At the hearing, Ms. Parker argued that an earlier version of the rule should be applied. The current law is
applied, as stipulated by the parties. See Gunn Plumbing, Inc. v. Dania Bank, 252 So. 2d 1, 4 (Fla. 1971).
The Amended Administrative Complaint charges that Ms. Parker violated section 1012.795 (l)(i) by violating the Principles of Professional Conduct for the Education Profession prescribed by State Board of Education rules. Rule 6B-1.006 establishes the Principles of Professional Conduct for the Education Profession in Florida.
Rule 6B-1.006(4)(d) provides that a teacher:
Shall not engage in harassment or discriminatory conduct which unreasonably interferes with an individual's performance of professional or work responsibilities or with the orderly processes of education or which creates a hostile, intimidating, abusive, offensive, or oppressive environment; . . . .
Ms. Parker's communications and conduct, other than her comment leaving the grievance determination review meeting, as determined in the Findings of Fact, violated this rule. She repeatedly harassed Ms. Boone. Her insubordination and emails were so repeated and extreme that they amounted to harassment of Dr. Knight. The conduct interfered with Dr. Knight's and
Ms. Boone's performance of their professional responsibilities. The Board proved the violation charged.
The Amended Administrative Complaint charges that
Ms. Parker violated section 1012.33(l)(a) in that she engaged in
misconduct in office sufficient to impair her effectiveness as a teacher. Ms. Parker's conduct and communications demonstrated that she was unwilling to participate in the school's evaluation process. She would not even acknowledge receipt of her evaluation. She refused to even consider criticism and suggestions. She repeatedly accused her supervisors of bias and being inferior to her. This misconduct impaired her effectiveness as a teacher.
The Amended Administrative Complaint charges that Ms. Parker violated section 1012.33(1)(a) by committing gross insubordination. That section makes gross insubordination just
cause for discharge. Ms. Parker's refusal to participate in the evaluation process and her refusal to sign the form acknowledging receipt of her evaluation was gross insubordination.
The Code of Civility
The Amended Complaint does not refer to Orange County Management Directive B-12, the Code of Civility. The parties, however, identified whether Ms. Parker violated the Code as an issue in their Joint Pre-Hearing Stipulation.
Ms. Parker's conduct and communications as determined in the Findings of Fact repeatedly violated the Code of Civility. The Code requires courteous and respectful treatment of others. Ms. Parker was discourteous and disrespectful.
The Code prohibits bullying. Ms. Parker bullied Ms. Boone and Dr. Knight.
The Code requires teachers to refrain from displays of temper. Ms. Parker repeatedly displayed her temper in written and spoken communications.
The Code requires cooperation. Ms. Parker was uncooperative time and time again. Her lack of cooperation extended to refusing meaningful participation in her evaluation and refusing to acknowledge having received the evaluation.
Ms. Parker offered two primary theories of defense.
One was that management was biased against her and treated her differently than other teachers. Persuasive credible evidence does not support the theory. Among other things, there is no credible, persuasive evidence that other employees engaged in a pattern of conduct similar to Ms. Parker.
The other theory was that her conduct should have been recognized as consistent with Lithuanian culture and excused on that account. The theory fails at the outset, setting aside the question of its legal sufficiency, for lack of evidence that behavior such as Ms. Parker's is the norm in Lithuania.
The facts proven by the credible, persuasive evidence establish just cause for termination of Ms. Parker's contract. Courts accept conflict with supervisors as a legitimate cause for discharge. Davis v. State University of New York, 802 F.2d 638 ,
642 (2nd Cir. 1986). Also disruptive behavior in the workplace is just cause for termination. See Johnson v. Allyn & Bacon Inc., 731 F.2d 64, 73 (1st Cir.), cert. denied, 469 U.S. 1018 (1984).
Discourtesy, too, is just cause for termination. See NLRB v. O. A. Fuller Super Markets, Inc., 374 F.2d 197 (5th Cir. 1967).
Ms. Parker's history of three disciplines for similar conduct buttresses the conclusion that termination is the proper action.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Orange County School Board enter a final order finding that there is just cause to terminate
Ms. Parker's employment and terminating her professional service contract for just cause pursuant to section 1012.33, Florida Statutes.
DONE AND ENTERED this 23rd day of October, 2012, in Tallahassee, Leon County, Florida.
S
JOHN D. C. NEWTON, II
Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675
Fax Filing (850) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 23rd day of October, 2012.
ENDNOTES
1/ All references to the Florida Statutes are to the 2011 edition unless otherwise noted.
2/ The stipulated facts are reproduced in paragraphs one through six as presented in the Joint Pre-Hearing Stipulation.
3/ The Statement of Stipulated Issues of Law is reproduced in paragraphs 80 through 87 as presented in the Joint Pre-Hearing Stipulation, except for some formatting modifications.
COPIES FURNISHED:
Pam Stewart, Interim Commissioner Department of Education Turlington Building, Suite 1514
325 West Gaines Street Tallahassee, Florida 32399-0400
Lois Tepper, Interim General Counsel Department of Education
Turlington Building, Suite 1244
325 West Gaines Street Tallahassee, Florida 32399-0400
Dr. Barbara Jenkins, Superintendent Orange County Schools
445 West Amelia Street Orlando, Florida 32801-0271
Joseph Egan, Jr., Esquire Egan, Lev and Siwica, P.A. Post Office Box 2231 Orlando, Florida 32802-2231
John C. Palmerini, Esquire Orange County School Board
445 West Amelia Street Orlando, Florida 32801-1128
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions within
15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.
| Issue Date | Document | Summary |
|---|---|---|
| Feb. 15, 2013 | Agency Final Order | |
| Oct. 23, 2012 | Recommended Order | School Board proved teacher's repeated combative, disrespectful, discourteous, and bullying statements in emails and in person were just cause for termination. Board also proved gross insubordination supporting discharge. |
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